Storlazzi v. Bakey, 1st Cir. (1995)

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USCA1 Opinion

October 31, 1995 October 31, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________

No. 95-1596

EDMUND G. STORLAZZI,

Plaintiff, Appellant,

v.

JANICE BAKEY, ET AL.,

Defendants, Appellees.

____________


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ERRATA SHEET

The opinion of this court issued on October 24, 1995,

amended by replacing the cover sheet with the attached.


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[NOT FOR PUBLICATION] [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS


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FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1596



v.



____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________


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Bownes, Senior Circuit Judge, ____________________

and Keeton, *District Judge. ______________

____________________

Matthew Cobb, with whom The Law Office of Matthew Cobb____________ _________________________________

brief for appellant. Harold Robertson, with whom Harmon & Ro ________________ ___________

were on brief for appellant.

Rodney E. Gould, with whom Craig S. Harwood, and Rubin,________________ _________________ _____

Gould, P.A., were on brief for Arlington School Committee an___________

Administration, defendants-appellees.

Paul F. Kelley, with whom Donald J. Siegel, and Segal, Roi ______________ ________________ _________

Coleman, were on brief for Massachusetts Teachers Associati_______

Arlington Education Association, appellees.

Americo A. Salini, Jr., on brief for Virginia Fuller, et a______________________

individual named members of the Arlington Education Associat

Arlington Education Association, defendants-appellees.

____________________

____________________

_______________

*Of the District of Massachusetts, sitting by designation.


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October 24, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]



FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1596



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v.



____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Keeton, *District Judge. ______________

____________________

Matthew Cobb, with whom The Law Office of Matthew Cobb____________ _________________________________


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brief for appellant. Harold Robertson, with whom Harmon & Ro ________________ ___________

were on brief for appellant.

Rodney E. Gould, with whom Craig S. Harwood, and Rubin,________________ _________________ _____

Gould, P.A., were on brief for Arlington School Committee an___________

Administration, defendants-appellees.

Paul F. Kelley, with whom Donald J. Siegel, and Segal, Roi ______________ ________________ _________

Coleman, were on brief for Massachusetts Teachers Associati

_______

Arlington Education Association, appellees.

Americo A. Salini, Jr., on brief for Virginia Fuller, et a______________________

individual named members of the Arlington Education Associat

Arlington Education Association, defendants-appellees.

____________________

____________________

_______________


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*Of the District of Massachusetts, sitting by designation.


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BOWNES, Senior Circuit Judge. Plaintiff-appellant, EdBOWNES, Senior Circuit Judge.

_____________________

Storlazzi, was a high school teacher in the Arlington, Massac

school system. He appeals from summary judgment for three s


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defendants in three cases, which were consolidated for trial

first case, filed on June 15, 1989, (Storlazzi I) named as def _________

past and present members of the Arlington School Committee, p

present administrators of Arlington High School, and past and

members of Arlington Education Association. The complaint

case alleged the following: a violation of 42 U.S.C. 1983

plaintiff was deprived of his First Amendment right to fre

speech; breach of the collective bargaining agreement by the

Committee; breach of a 1982 settlement agreement by the

Committee; breach of the duty of fair representation by the Ar

Education Association; defamation and intentional inflict

emotional distress.

The second action, which was filed on March 19, 1993,

plaintiff's motion to amend the first complaint was denied

prejudice, alleged: that plaintiff's employment was ter

because he exercised his First Amendment right to freedom of sp

due process violation for failing to provide notice and

termination hearing; violation of his rights under the Massac

Civil Rights Act; intentional interference with his teaching co

and intentional infliction of emotional distress. The defen

Storlazzi II were named members of the School Committee, t_________

School Administration, and the Union (Arlington E

Association).

Plaintiff filed his third action on May 12, 1993, again

School Committee, the Union and the Massachusetts Te

Association. The complaint alleged: the School Committee fa


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train the School Administration officials so as to prevent reta

action; breach of the Collective Bargaining Agreement by the

Committee; breach of the duty of fair representation by the Un

the Massachusetts Teachers' Association (state teachers' unio

violation of the Massachusetts Civil Rights Act.

Plaintiff forwards three issues: that the cases were imp

consolidated; that the summary judgment was improper beca

procedural defects; and there was no substantive basis for the

judgment. After carefully examining the record, we affi

judgment of the district court.

Consolidation Consolidation _____________

We start with Fed. R. Civ. P. 42(a):

(a) Consolidation. When actions involving a com (a) Consolidation.

question of law or fact are pending before the court, it

order a joint hearing or trial of any or all the matters

issue in the actions; it may order all the actio

consolidated; and it may make such orders concerni

proceedings therein as may tend to avoid unnecessary costs

delay.

There can be little doubt that the three consolidated case


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within the plain language of the Rule. They involve common qu

of law and fact. And the plaintiff has crisscrossed the defen

the three suits. We note that in the first hearing befo

district judge who took over the cases, counsel for the plain

Storlazzi I agreed with the court at least twice that the thre_________

should be tried together.* Our standard of review on this i

abuse of discretion. See 9 Charles A. Wright and Arthur R.___


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Federal Practice and Procedure 2383 (1995). As we pointe_______________________________

Seguro de Servicio de Salud v. McAuto Sys., 878 F.2d 5, 8 (1

___________________________________________

1989), "[a] motion for consolidation will usually be granted

the party opposing it can show 'demonstrable prejudice.'" (c

omitted). There has been no prejudice shown here. Thes

paradigm cases for consolidation.

Summary Judgment - Procedure Summary Judgment - Procedure ____________________________

Plaintiff objects to the grant of summary judgment o

procedural grounds: that no motion had been made by defendan

summary judgment; that no notice had been given by the distric

that summary judgment was in the offing; and that plaintiff

opportunity for discovery prior to the grant of summary judgmen


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These claims require a careful examination of the record.

first conference with counsel on May 12, 1994, the court set

1994 as the date for a hearing on summary judgment as to Storl ____

The court also advised counsel that on the same day it woul

____________________

*Counsel in Storlazzi I told the court that he did not repres_________

plaintiff on the other two cases. Counsel in those cases

present at the hearing.


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defendants' motions to dismiss Storlazzi II and III.

_________

At the hearing on June 2, the two counsel for the plaintif

present. Attorney Cobb, who represented the plaintiff in Storl ____

and III did most of the arguing for the plaintiff. He first

that there was no discovery in cases II and III. The court re

by pointing out that in connection with Storlazzi I depositions_________

the defendants had been taken and that their depositions i

questions about plaintiff's discharge. She then asked, "What'

to do?" Attorney Cobb gave a vague general answer i

"Monell."** He never, however, told the court what ad ______

depositions, if any, he intended to take, or what affidavits,


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he intended to file. In short, plaintiff's counsel did not ans

court's question as to what further discovery he inten

undertake. In light of the fact that Storlazzi II and III had_________

gestation for more than a year prior to this hearing, we conclu

plaintiff's claim that he had been deprived of discovery i

cases has no merit.

We next consider the claim that plaintiff did not receive

notice that the court was considering summary judgment. It

that defendants did not formally move for summary judgment. T

however, file motions to dismiss accompanied by deposition ref

and affidavits. This automatically triggered summary judgmen

Fed. R. Civ. P. 12 (c) which provides:

(c) Motion for Judgment on the Pleadings. After t (c) Motion for Judgment on the Pleadings.

pleadings are closed but within such time as not to delay t


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____________________

**Monell v. Dep't of Social Serv., 436 U.S. 658 (1978). _______________________________

trial, any party may move for judgment on the pleadings. I

on a motion for judgment on the pleadings, matters outsi

the pleadings are presented to and not excluded by the cour

the motion shall be treated as one for summary judgment a

disposed of as provided in Rule 56, and all parties shall

given reasonable opportunity to present all material ma

pertinent to such a motion by Rule 56.


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We assume that one who brings an action in federal court is f

with the Federal Rules of Civil Procedure.

The plain language of Rule 12(b)(6) that materials outsi

the pleading may be considered if not excluded by the cou

put plaintiff on notice that the motion might be convert

into one for summary judgment.

Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986). _________________________

Our observation in Chaparro-Febus v. Local 1575, 983 F._____________________________

332 (1st Cir. 1992) applies to the situation here:

In the present case, plaintiffs had almost a year betwe

the filing of the motion to dismiss and the court's treatme

of that motion as one for summary judgment. Moreover, over

year had elapsed since plaintiffs initially filed the

complaint. Summary judgment did not "follow[] hard on t

heels of the complaint or answer." (citation omitted).

Moreover, the transcript of the June 2, 1994, hearing sho

the district court was thinking in terms of summary j


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disposition. Most of the hearing was devoted to the

explanation to plaintiff's counsel of why the pleadings alone

suffice to make out a case. A few examples make clear the mess

judge was sending.

First, I am obliged on summary judgment to look to t

pleadings, the affidavits that have been filed, t

depositions, answers to interrogatories, et cetera. And w

I see in this case -- correct me if I am wrong -- is t

plaintiff has pled a host of things, a host of accusation

in his initial complaint. The defendants have come back wi

affidavits and depositions attached. And with respect to

number of those accusations, there's silence on t

plaintiff's side.


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And the law is that the allegation in the complaint is n

established where there is an affidavit to it. In ot

words, the plaintiff says in his complaint that he object

to the way students were given credit for taking course

that, in particular, in the case of one student whose name

Sunshine Renews, he objected to the way the grade was enter

in her case. The defendants, through their depositions a

through the affidavits, say, "Here's the explanation for

we interposed a grade like that." And then his answer is,

disagree."

Well, with respect to that kind of an accusation, it see

to me the plaintiff hasn't met his burden. That's not

sufficient response.

__________

Then I tried to discern from what was protected whet

there was a causal -- when the plaintiff made out his cas

that there was a causal connection between what he said a


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what was done to him. And one way of establishing caus

connection is by showing, "I did this at Time One, and t

they retaliated at Time Two."

With respect to a whole host of Mr. Storlazzi

accusations, I cannot fix the time at all from his papers.

can't determine that he complained about X on this date a

then something followed. That's -- although coincidence

timing is not dispositive on the issue of causation, it

very helpful. Many of the things he has alleged have no da

to them at all.

With respect to those things which he says he

retaliated about, the defendants answer and point to either

rational basis for doing what they did or suggest that the

was no difference between his treatment and others. Singli

someone out for special treatment is one piece of evidence

retaliation. And, as I have said before, I can't in each

these cases come up with an example in which the plainti

says -- the plaintiff rebuts that presentation.

So you need, with respect to each of these accusations,

say -- to prove in some fashion, more than just a conclusio

that, in fact, he was singled out in some way different fr

all the other players who had administrative actio

performed against them, or that there wasn't a ration

basis.


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__________

So with respect to all of the administrative decision

all the administrative actions here about transferri

students, about locking student lavatories, abo

administering final exams, and my understanding

preliminary of this case, is that, if they can provide

rational basis for having taken the positions that they di

then that would be sufficient, and the plaintiff has

respond.


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__________

After the court briefly discussed the Mt. Hea

________

requirements, counsel for the plaintiff pointed out that Mt.___

was decided on the merits, not on a summary judgment basis. T

responded as follows:

But summary judgment predicts what a jury is going to do.

that I am supposed to take the inferences all in favor of t

plaintiff, and looking at the documents I have described,

am supposed to predict whether or not a reasonable jury cou

find a prima facie case, a reasonable jury could find t _____ _____

the defendants have met their burden.

So I am using Mount Healthy simply because it describ

the various burdens which are part of what I have to consi

on summary judgment as well.

The court gave plaintiffs' attorneys a week in which to o

the pleadings, setting forth chronologically the order of event


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court pointed out that "one way of proving causal connectio

temporal one." The court stated explicitly that it wanted t

terms of evaluating summary judgment."

Clearly this was not the type of sua sponte summary jud ___ ______

the district court that we condemned in Stella v. Town of Te _____________________

Mass., 4 F.3d 53 (1st Cir. 1993) (Both parties prepared to sta_____

trial and were surveying prospective jurors when visiting ju

to case, ordered defendants to move for summary judgment. Pla

____________________

***Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 ( ____________________________________________


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objected without avail. Three days later judge issued

judgment for defendants.).

Summary Judgment - Substantive Summary Judgment - Substantive ______________________________

We adopt the district court's extensive findings and rul

its substantive summary judgment holding.**** We, therefor

not regurgitate the district court's opinion. We t

appropriate, however, to make a few general remarks. Fir

plaintiff relied entirely on his pleadings to make out a pri___


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case. He did not respond directly to the asseverations suppo

affidavits and references to filed depositions made by defe

The law governing such a posture is clear.

In our view, the plain language of Rule 56(c) mandates t

entry of summary judgment, after adequate time for discove

and upon motion, against a party who fails to make a showi

sufficient to establish the existence of an element essenti

to that party's case, and on which that party will bear t

burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). ________________________

In Kelly v. United States, 924 F.2d 355, 357 (1st Cir. 199_______________________

held that the nonmovant in the summary judgment context may n

upon "mere allegations . . . but must produce evidence which

admissible at trial to make out the requisite issue of material

This, plaintiff has utterly failed to do.


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The observations made in Kaufman v. Puerto Rico Tel. Co_______________________________

F.2d 1169, 1172-73 n.5 (1st Cir. 1988), are germane here:

5. The plaintiffs argue that the sworn statements in the

complaint and affidavits constitute sufficient grounds

____________________

****The district court opinion is cited as Storlazzi v. Bakey,__________________

Supp. 494 (D. Mass 1995).


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generate a factual dispute concerning the defendant

political motivations because they provide the groundwork f

proof of that motivation by circumstantial evidence.

recognize that a prima facie case of political discriminati

___________

can be built on circumstantial evidence of constitutional

suspect motivations for employee dismissals. See, e. ________

Kercado-Melendez v. Aponte-Rogue, 829 F.2d at 264.___________________________________

calling for more specific factual allegations to support t

plaintiffs' claim under the Celotex/Anderson standar ________________

however, we do not reject the plaintiffs' contentio

Rather, for any substantive claim, whether built up

circumstantial or direct evidence, the party against w

summary judgment is sought must generate the specific fac

necessary to take the asserted claim out of the realm

speculative, general allegations. The plaintiffs have fail

to do that in this case.

During the June 2 hearing there was discussion between the

and plaintiff's counsel which could be interpreted to mean t

temporal proximity of occurrences might be sufficient to es

causation. This would appear to run counter to the rule


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circuit. In Kaufman we held that the dismissal of members_______

political party immediately after the opposition party took off

insufficient under Celotex and Anderson v. Liberty Lobby, In_______ _____________________________

U.S. 242 (1986), to generate a genuine issue of material

Kaufman, 841 F.2d at 1172. We held to the same effect in_______

Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992). See also___________________ ___ ____

Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993). ______________

The judgment of the district court is affirmed. Costs awa The judgment of the district court is affirmed. Costs awa __________________________________________________________

appellees. appellees. __________


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Documents

Storlazzi v. Bakey, 1st Cir. (1995)